"Daoxiangchun" is still protected by the "old brand" trademark of Donglaishun

The Beijing Municipal Higher People's Court issued a final judgment on the 8th, rejecting the appeal of natural person Ma Mou, upholding the first-instance judgment of the Beijing Intellectual Property Court, and Beijing Donglaishun Group Co., Ltd. was maintained in the two trademarks of "Daoxiangchun Daoxiangchun and Tu" registered on "pastries, biscuits, rice cakes, Lantern, Poria Sandwich Cake" and "beef jerky, cooked food, and meat floss" respectively.

According to the provisions of the Trademark Law, if the use of a registered trademark is stopped for three consecutive years, the Trademark Office shall order it to make corrections or cancel its registered trademark within a time limit.

On October 13, 2016, ma Mou, a natural person, filed an application for cancellation with the Trademark Office of the State Administration for Industry and Commerce on the grounds that the trademark "Daoxiangchun and Tu" registered by Donglaishun Company had ceased to be used for three consecutive years, requesting the cancellation of the above two registered trademarks of Donglaishun Company.

After examination, the Trademark Office held that the evidence of use submitted by Donglaishun Company was valid and could prove that it had actually used the trademark "Daoxiangchun and Tu" between October 13, 2013 and October 12, 2016, and therefore decided not to revoke the trademark. Unsatisfied with the decision of the Trademark Office, Ma submitted an application for reexamination to the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce.

After review, the Trademark Review and Adjudication Board held that the trademark licensing contract submitted by Donglaishun Company to the Trademark Office could only indicate that Donglaishun Company and Beijing Daoxiangchun Food Co., Ltd. had signed a license agreement for the trademark "Daoxiangchun and Tu", and could not prove that the trademark had actually been used. Other evidence submitted by Donglaishun Company could not prove that the "Dao Xiang Chun and Tu" trademark was actually used, so a decision was made to revoke the registration of the "Dao Xiang Chun and Tu" trademark.

Donglaishun Company was not satisfied with the application of the Trademark Review and Adjudication Board and filed an administrative lawsuit with the Beijing Intellectual Property Court.

After trial, the Beijing Intellectual Property Court held that the evidence provided by Donglaishun Company was sufficient to form a chain of evidence, which could prove the actual use of the "Daoxiangchun and Tu" trademark, so the first-instance judgment was to revoke the decision of the Trademark Review and Adjudication Board and to make a new review decision by the Trademark Review and Adjudication Board.

Although the Trademark Review and Adjudication Board obeyed the first-instance judgment and did not file an appeal, the plaintiff of the first-instance trial, Ma Mou, appealed to the Beijing Municipal Higher People's Court against the first-instance judgment.

On the basis of supplementing the investigation of the registration, transfer, renewal, use of the trademark license and the historical evolution of the relevant company, the Beijing Municipal Higher People's Court held that although Donglaishun Company, as the trademark registrant, did not provide direct evidence of the actual use of the "Daoxiangchun and Tu" trademark during the designated period in this case, donglaishun company provided it with the "Daoxiangchun" trademark license agreement signed with Beijing Daoxiangchun Food Co., Ltd. on several occasions. Evidence such as the transfer voucher for the payment of the trademark license fee by Beijing Daoxiangchun Food Co., Ltd., the notarial certificate of the use of the trademark "Daoxiangchun and Tu" on the relevant commodities on the market after the specified period, combined with the fact that the "Daoxiangchun and Tu" trademark was repeatedly rated as a famous trademark in Beijing between 1995 and 2014, can prove that the "Daoxiangchun and Tu" trademark was actually used within the specified period, and the conclusion of the first-instance judgment was not improper, therefore, the final judgment rejected Ma's appeal, "Daoxiangchun and Tu" The registration of the trademark was eventually maintained.

(Editor-in-charge: Li Wei)